The Profile of the Disenfranchised Offender

This chapter examines the profile of the criminal offender who may be legitimately disenfranchised in line with the previously expounded theoretical framework. While the preceding chapter concluded that the only possible candidates for disenfranchisement are persons who have seriously and irreversibly severed citizenship ties with their polity owing to an incorrigible lack of moral conscience, the current chapter sets out further considerations that ought to aid policymakers. The chapter argues that immoral offenders should only be disenfranchised for serious crimes against the polity or their co-citizens, that judges should play an active part in imposing the sanction, that disenfranchisement should be permanent, and that limits to active and passive suffrage should be equal. The chapter also draws a distinction between a right and a duty to disenfranchise, by explaining the reasons for which polities may abstain from imposing such restrictions.

The Nature of Criminal Disenfranchisement

This chapter sets up the frame for the subsequent normative analysis by seeking to establish the nature of criminal disenfranchisement. Departing from the common notion that criminal disenfranchisement is a form of punishment, the chapter first contrasts the traits of these two sanctions. A significant discrepancy between them is uncovered, which is based on the finding that disenfranchisement may never be considered a principal or sufficient response to crime, that it stands against the principle of ultima ratio, and that it fundamentally targets the offender rather than the offense. Moving away from punishment, the chapter next establishes that, due to its non-penal aims, disenfranchisement is more akin to security measures but nevertheless lacks the preventive, “risk-based” element that characterizes these sanctions. Ultimately, the chapter proposes that criminal disenfranchisement is a sui generis sanction that—rather than pursuing penal goals—targets the equal citizenship of criminal offenders.

Introduction

The chapter explains the key issues that the book addresses, its methodological approach, and the structure of the argument. The book proceeds from an observation that, in many contemporary democracies, criminal disenfranchisement remains the only form of exclusion of adult, mentally competent citizens from equal citizenship entitlements. The book therefore aims to determine whether such restrictions could be considered justified in contemporary democracies. The chapter examines the currently predominant empirical approach to the problem and explains the importance of developing a comprehensive normative account of criminal disenfranchisement. After exploring alternative frameworks, the chapter proposes that the answer to the normative question should be sought within the domain of citizenship theory, which allows one to ask questions about the substance of membership duties in a polity and the conditions that one needs to satisfy to enjoy the rights attached to the citizenship status.

The Citizenship Status of Criminal Offenders

This chapter aims to translate the three models into tangible citizenship conditions, allowing us to establish whether criminal offenders ought to retain their citizenship rights post-conviction. It is argued that—under the first model—most criminals remain citizens since episodic violations do not signal a lack of capacity for a “sense of justice.” Similarly, most criminal offenders are not without “civic virtue”—they remain self-governing subjects whose civic qualities can be enhanced. Finally, while criminals certainly act against the “common good,” most remain valuable members of the community who bring forward a specific vision of the good life, which prevents the community from excluding them. All three models, however, equally point toward the existence of a small number of individuals who are without crucial citizenship requirements, and the chapter concludes that—regardless of differences between the three models—all of them similarly permit exclusions of persons with strong, incorrigible anti-social inclinations.

Contemporary Dimensions of Criminal Disenfranchisement

This chapter examines European disenfranchisement policies, aiming to uncover their characteristics and use them as models for the normative discussion. It considers the legislation in 43 European countries along four dimensions: the prevalence of restrictions; dominant notions of “disenfranchise-able” offender; extent of restrictions; and timing, length, and manner of imposition of restrictions. The analysis uncovers a great deal of diversity across Europe: while the rights of many criminal offenders remain intact, most countries nevertheless believe that some instances of criminal offending warrant restrictions. The chapter finds that three-quarters of European countries impose some restrictions, one-third disenfranchise all prisoners, one-half restrict both active and passive electoral rights, one-third employ post-penal disenfranchisement, while one-quarter permit a permanent ban. Comparing these data to the US states—which are often considered incomparably strict—the chapter suggests that the difference is only in the degree of restrictions and not in the kind of existing policies.

Disenfranchisement and Citizenship

This chapter explores the most significant historical precedent of contemporary electoral restrictions—the sanction of atimia—and aims to elucidate the purpose and social role that the practice played in ancient Athens. To understand the nature of atimia, the chapter contrasts it to ostracism, another exclusionary sanction of that time. The chapter demonstrates that in the specific kind of polity that was characterized by strong political links between citizens, atimia was not a criminal, but predominantly a citizenship sanction, which sought to exclude a disobedient member from the enjoyment of full citizenship entitlements. The chapter concludes that while this type of sanction cohered with a politically saturated kind of society such as Athenian, it is less certain whether similar sanctions could be considered justified in contemporary societies in which social and political realms are more separate and where ties between co-citizens are largely extra-political.

Conclusion

The last chapter summarizes the main conclusions of the book. The empirical findings have demonstrated that although many countries increasingly adopt pro-enfranchisement policies, most still impose electoral restrictions. The book has also reached three theoretical conclusions. First, disenfranchisement is conceptually different from criminal punishment and represents a citizenship sanction whose purpose is to undermine one’s status of equal membership. While punishment sanctions offenders as humans, disenfranchisement sanctions the unsatisfactory performance of citizenship duties. Second, only immoral offenders who have, by committing serious crimes against the polity, irreparably severed co-citizenship ties may be legitimately excluded. This conclusion is further specified by analyzing crimes that could activate the restriction, its length, and the manner of imposition. Third, by generating a frame for thinking about duties that citizens have toward their polities, the book has also created a theoretical structure within which other citizenship-altering sanctions that exist in contemporary democracies could be normatively assessed.

Models of Citizenship Requirements

Starting from the premise that criminal disenfranchisement sanctions the unsatisfactory performance of citizenship duties, this chapter develops three different models that account for different kinds of duties that citizens of contemporary democracies may have toward their polities. The “sense of justice” model, related to the liberal tradition of democratic political thought, demands that citizens have a basic capacity for a sense of justice—a capacity to respect the negotiated and widely accepted fundamental values of the polity. The “civic virtue” model, connected to republicanism, requires that self-governing citizens are devoted to political cooperation and appreciate the inherent value of the polity. The “common good” model, associated with communitarianism, expects strict adherence to specific values and a particular interpretation of the good life, which is shared by members of a polity and which is mirrored in its legal norms.